214

staffifeprescribil1.g the jtirisdletii6I1 of-the: It Isbetterptllt'!t!ce, also.,to'mow affifunatlvely in tbe'biU tbe groupd in contl1oversy is a1001"1 I>r clailn. I, '

On 'White,k:M:Qnroe and Ch'apniari,'for complainant.

" i'.';',! ,i ( ;,::' " ,'I,\. , '", "! i: ; ..

ROSS, Oirc,1Jit The fact th3.t ;this suit. Wasp,l'()ught underand by virtue of section 2326 of. the UnitedStates not, ,I think, exempt ,the cwnplainant fro:r;n theof showing, tl;J,atthe value o,f tbe property in controversy is sufficientto bring it. within the requirement of.,thegeneral stat!1teprescribingthe the, Qf the Unitep, S-pttes. MiningCo. v. Rutter,31 C. C. v.Harrington,111 U. S. 350, 4 Sup. Ct. 428; Stras,burger y. Beech,eJ,',44 Fed. 213;Burke v. Concentrating 00., 46 Fed, 64'l<. .Whether necelilsary Or not,I think itis allilo better, ill' order to.saveap,y question iAoregard to thematter, that the bill sh()waffirmatively, andp.ot by,inference only,whether the ground in controYersy:between the is, a lode orplacer claim.' An order,wiUbe entered demurrer, with,leave. to the complainant to amend the lj)j)l,witllin the \llilu,a\, time, if itshall be so. advised.

ANGLE et ill. v. CHICAGO, P. & S.RY; CO. ebl1., (CircUit ,Court, W:':6. Wisconsill.July 21,

'. , .;.<' • " • ,,'I . "."':i l

FEDERAL CO'iJRTS...,.RuLES OF St;PREM'E COURT AS. PREC-EDENT., " , ,,', " ' "," ,', ' , ..Where"thlOl questions ar!$ing in a suit jna circuit court are the same

as those involved iI). ,R' suit between other parties which has been de-termined by the' snprem,e :court, and, the 'evidence' material' to such ques-tions is substantially decision of the supreme court, whileit does ,not render the questions 'res jUdicata, constitute!ii. a precedent whichshould be followed by inferior court. ',.' -'i' 1-; ,',-' "," '., .,. .. ,',:;

This was a ,suit in equity, in the nature of a creditors'bill, brou.ghtby Sarah RAngle, administratrix, and Thomas M. Nelson, administra-tor, of the estate of H. G. Angle, deceased, against the Chicago, Port-age & Superior Railway Oompany, the Ohicago, St. Paul, Minneapolis& Omaha Railway Company, and the Farmers' Loan & Trust Com-pany. On final hearing.Burr W.Jones and F. J. Lamb, forcomplainantB. 'Thomas H. :Wilson, for defendants..

'j.' , ',,;,

BUNN, District Judge. It has not been, and is not now, my pur-pose to ,this case, put only to indicate very briedy,and in a general way, the conc1usionsieached, with the grounds onwhich they ave based; Each party on the hearing having indicatedapurpose dftakingan appeal in the ah'adverse decision byWis goes, up,yyill. stal;ld, f9r hearing :/;lovoin theappeUate court upon the same allegations and the same evidence

ANGLE V.CHICAGO, P. " S.RY. CO. 215

as it stands here, so that the decision here will be but preliminary toa tinal hearing in the court of appeals. Nevertheless, the case hasbeen argued with all the fullness that it could be if this was the courtof last resort. Fully two weeks were consumed by oral argument of

on the hearing, and elaborate briefs have been prepared andfiled since. This court has endeavored to give the case all the atten-tion which its importance demands. The litigation has been in thiscourt and the supreme court, in some form, for 10 Or 12 years, andthis is the final hearing, so far as this court is concerned, upon theequity side. The conclusion which the court has reached is that thebill of complaint must be dismissed for want of equity, on the ground,generally stated, that the allegations of the bill are not supportedby the evidence. The case was first heard before Mr. Justice Harlan,on the circuit, upon general demurrer to the bill, and the demurrersustained and the bill dismissed. 39 Fed. 912. An appeal wastaken from that decision to the supreme court of the United States,and was decided by that court on January 4, Bya careful opin-ion, prepared by:Mr. Justice Brewer, the decision of the circuit courtwas reversed, and the allegations of the bill held to be sufficient toconstitute a good cause in equity.' The case is reported in 151 U. S.1, 14 Sup. ct. 240. It is claimed by plaintiffs' counsel that this deci-sion constHutes, in an important sense, the law of this case, and so itdoes; but .only to this extent: that, if the allegations of the bill arefairly supported by the evidence, there should be a decree for theplaintiffs. Since that case was in the supreme court, another casein equity has been decided there, to wit, the case of Farmers' Loan& Trllst 00. v. Same Defendants, decided. on May 4, 1896, and re-ported in 163 U. S. 31, 16 Sup. at. 917. That was a suit broughtby the of ,the Portage & Superior Company, seeking tohave tlIeir claim declared a lien upon the lands taken away from that,company on account of a failure to perform the conditions of thegrant, and conferred upon the Omaha Company. That. case was alsoheard by Mr. Justice Ilal'lan,: at the circuit, upon the merits, andthe for want.of equity. See his opinion in 39 Fed.143. The, facts in ;t)1is case are,fully stated by Mr. Justice Harlan inhis opinion, an,d,aIso by Mr. Justice Brewer in the same case, andin this case on appeaUn the supreme court, .so that it seems quiteunnecessary the,pl here. H. G. Angle, the husband of thisplaintiff, made a contra<:t, with what is in this case called the PortageCompany, in AUg'q$t, 1881, for the grading of the 65 miles of its road(being the· portion thereof) from a point betweenships 25 a,nd31 to the west end of Lake Superior. In 1887, the com-pany .having' failed, theplaintjji, as Angle's administratrix, obtaineda judgment in this court upon that contract for work done, and fordamages . and costs, in the SUPl of The judgment notbeing satisfied, this suit was brought, in the nature of a creditors'biIl,against the OmahilRailway Company, to have the judgmentdeclared a lien upon the land-grant lands which the legislature bythe acts. and 1883 had taken away from the Portage COIll"panY,and conferred upon the Omaha Company, which had built theroad, on the ground that those acts were unconstitutional and void,

216 95 FEDERAL REPORTER.

because of fraud and wrongdoing committed by the officers of thatcOIhpany in obtaining the grant, in getting control of and wrecking theP()J1tageCompany, and depriving it of the opportunity and right toearn'thelands under the grant to that company; alleging that theOmaha Company, on account of such wrongful acts, became and is atrustee) of the lands, ex maleficio, for the creditors of the PortageCompany. The nature and purpose of the suit brought by the trus-tee of the bondholders, as creditors of the Portage Company, werethe same as in this,-to reach the land-grant lands in the hands of theOmruhaCompany, and have that company declared a trustee of thelandsf'Ol1.the benefit of the bondholders. The material allegationsof that bill are substantially the same as those of the bill in this case.If the proof is the same,-and it is claimed by counsel for defendantthat itis,-then the decision of the supreme court dismissing the billis an authority for this case in this court, not on the ground that itis stare.dedsis, because the parties are not the same, but as a prece-dent by. the highest which is binding upon an inferior courtof the same jurisdiction. The allegations of the bill and the issuebeing the same, if the evidence in support of the bill is also the same,or substantially the same, the decision would constitute a precedentor rule which I think would be binding upon this court, though notupon the supreme court, if the case should ever get there. I have readcarefully all the evidence in both records, and the best judgment Ican form is thatthe testimony, so far as it has a material bearing uponthe issue, is substantially the same in each case, and that where thereis a difference, as in the testimony of Porter, Spooner, and Peck,that difference makes rather in favor of the defendant than theplaintiff. The supreme court in that case held that the allegations ofthe'bill were not supported by th€evidence; that Barnes and Jacksonhad a right to sell the stock standing in Jackson's hame; that theOmaha Company had a right to buy it, and that in doing so it did nowrong, and that it had a right to take the land grant which the legis-lature conferred upon it; and that in doing so it committed no wrong.It is insisted by counsel that the case at bar should be heard and

decided as though the s<Halled "I\ond Case" had never been heard.Ko doubt, it is to be tried on its own merits; but the Bond Case,in the circumstances, can hardly be disregarded as a rule andprecedent. 'My opinion is that it should have very great weight, andI confess that I am unable to distinguish it materially from this uponany just principle of legal procedure. The prime difficulty in tbis'case, as in the Bond Oase, is that the a11egations of Uie. bill are notsupported by the evidence. The allegations of frau.d .and bribery andconspiracy and wrongdoing are full and profuse in the bill. I shouldentertain no doubt of their sufficiency as they stand in the bill. Butit seems to me there ifla fatal lack of evidence to support thetions. It is a poor laWyer that,' in the privacy of his office, cannotfind to make a case in equity on 'paper,-especially as heis not· trOUbled' with any necessity for verifying the bill upon oath.But in legal controversies it is not at all uncommon thl'J,t "the successand vigor of the war do not· quite come up to the lofty and soundingphrase of thf. manifesto." . .

ANGLE V. CHICAGO, P. & S. RY. CO. 217

The evidence, in my judgment, shows that the final collapse of thePortage Company in the winter of 1882 was not caused by any wrongcommitted by Jackson or C. J. Barnes or Porter or Cable or theOmaha Company, but by the continued and hopeless insolvency of thePortage Company, caused by an inadequate and irretrievably bad man-agement. The sale of the $1,000,000 of Jackson stock and the trans-fer of the land grant to the Omaha Company were, it is true, coinci·dent with the final collapse of the Portage Company; but there is noreason to believe, from the testimony, that these things stood in therelation of cause and effect to such final collapse. They may with muchmore propriety be said to be an effect or result of the general insol-vency and total inability of the Portage Company to raise moneyfor the accomplishment of such an enterprise. Jackson did not wishto sell to the Omaha Company. He had been connected with thePortage Company from· the beginning as attorney. It was clearlyfor his interest that that company should build the road and earnthe grant. There is no reason to doubt his good faith when he saysthat he wanted to see the Portage Company succeed, and that he didall he could to that end, and to get that company, or those represent-ing it, to take the stock and pay his claim and those of his friends,Sloan and Ruger. The entire amount of those claims was but $30,000,-$18,000 to Jackson for legal services, $2,000 to Sloan for legal serv-ices, and $10,000 to Ruger for engineering services. If these smallclaims could have been paid, Jackson would have had no furtherclaim, except two or three thousand dollars for legal services not in-cluded in the judgment against the construction company, and whichhe has never yet received. It is very significant that .under the man-agement of Schofield and Gaylord, with their interminable series ofcontracts with the investment company and with the "English par-ties," so called, for the raising of money, the company was in debtfor everything; that it was unable to pay its attorneys or its en-gineers, or the men who were doing the grading. These variousagreements without end of words brought no money. There wereconstating agreements and investment contracts in plenty, but noinvestment and no money. Apparently, one leading purpose of thesecontracts was to make safe provision for an equal division of theprofits of the land grant between Gaylord, Schofield, and Barnes,by the earlier ones; and by the later, between Gaylord, Schofield, andthe investment company. John C. Barnes was one of the originalpromoters until he fell in with Willis Gaylord, who, uniting WilliamH. Schofield with him, took the concern out of his hands. He saysin many places that he had not much to do with it after they camein. He had put in some money,-no one knows how much, but aboutall he had; he thinks, from $100,000 to $200,000; he cannot re-member. Gaylord was a mere adventurer, with no money, nor muchcharacter, whose business, as J. C. Barnes says, seemed to be towork such schemes as this. Schofield had once had money, but hadlost it. He could put but little into the enterprise. The land grantwas an uncertain quantity at t.hat time. It is easy now, after theroad is built and the lands partly sold, to see that the grant wasvaluable; but Gaylord and Schofield had much difficulty in satisfying

218 ·95 FEDERAL REPORTER.

the English: parties (Rickson and Meddaugh, the 'president and at-torney of the Gl'and Trunlr, Limited, attEnglish corporation) that thegrant was of· much value. They had in their ha:ndsa large majorityof the stock oUhe Portage Company, amounting to which,if lawfully issued, as they claimed it was, would give control of thecompany. But, to raise money in England, theymllst issue a pros-pectus to advertise the stock and bonds. Bills had been introducedinto the legislature of Wisconsin in the winter of'1881 forfeiting thegrant, and conferring it on other companies. Partly' by the efforts of.Jackson and Sloan these bills had been defeated. There was danger,amounting almost to a certainty, that other bills would be introducedin the winter of 1882. There was question made as to the value ofthe grant:" 'l'he English parties· had been informed that it was notas valuable as had been i-eprel'iented by the officers' and agents of thePortage Company. In England. where peoplewereifuore honest andthe law more strict than elsewhere, sueh things had to be conductedopenly and ott· the square; or the promoters of thepl"ospectus wouldtender themselves personally "liable;" iThis was' dangerous ground totread. All these discotiraging things niust be placed in the pros-pectus Dr manifesto which was to take the people's money. But, ifthese things were put in, nobody'weuld buy> There was anothercontrolling consideration: ;',A 8uggestioniwas made when all the par-ties were met· in Ohicago in Jannary;1882, that the Jackson andBarnes $1,00@,,000 of stock constituted a:majol'ity of legal stock, withwhomsoever"shcHlld own it, because the '$5;100,000 in the hands of theEnglish parties had 'not been legally issued, under the laws ofconsin, whicll'reqtiired; a consideration for the issue,-something tobe paid for it. R-was merely placed there by GayHwd and Schofield,who carried. the stock us well as the corporation in their pockets fromcountry to eountry;but without consideration, except to raise moneyupon whenever: they could·tle·sold. It had never been sold, or anv-thing paid for it. 'Meddaugh was said to be a competent man aridlawyer, and had i examined and looked far into the affairs of thePOrtage He· claimed the stock in theirihands-was Iegall,vissl1ed.·Jacksonthoughtotherwise, and said It is now admittedthat Jackson :knel: the best of the argument, and that'his and Barnes'stock was the [only valid stock of any controlling amount, and thefar greatetafn,(l)unt of the stock in the hands of the English partieswould not give (lontrol of the When this doubt came tothe' knowledge of Hickson, he refusea to: go on with the negotiations.He had come to Chicago, where to hold a general meetingof the Grand, Trunk' officers, .preparea to advance $50,000 to thePortage Company; provided·he fonndeverything right. But the timefor the completion of the road 6f the Portage Company was aboutto expire. A bill had already been introduced (or was about to be)ill the legislature to forfeit the grant, and this, withtue donbt asto the validity of· the English stock, caused Hickson 'to withdrawfrom the enterprise. These considerations were quite as much thecause of the collapse of the company; and the cessation of the work,as the act of the Omaha Company in purchasing the Jackson stock,-in my judgment, much mot"e so. Negotiations were broken bff. Hick-

ANGLE V. CHICAGO, P. &: .S. RY. CO. 219

son withdrew, and Gen, went home to New York two orthree days before the con.tract for the sale of the .Jackson stock hadbeen perfected, on ,Ja;o.uary 19th. ,Hickson had been offered theJackson topm'chase. John C. Barnes and C. J.Barnes could have had Hany time by paying the sum of $30,000,-the amount of Jackson's,Sloall's,and Ruger's claims. But they couldnot buy. They had nQ.ll1pney..•:rackson is arraigned for betrayinghis company and selling his stock to Cable, who represented the OmahaC'Almpany. But what could he do? If the company collapsed and thegrant was taken away, his stock and all stock would be worth-less. ,He had a right, under these circumstances, to secure himselfand Barnes, Ruger, and Sloan, who with him had stood by the com-pany so long. The legal title was in him, but, after he and Sloanand Ruger were paid,' the balance belonged to the Barnes interest.Jackson is also blamed for suggesting to the English parties that thestock in their hands was not legally issued, because it is .said thisinformation discouraged the negotiations for the advance of the$50,000, though it is conceded that Jackson was right in his opinion,and Meddaugh, the English lawyer, was wrong. But why should notJackson express his opinion? Or what reason was there for nursinga lie,so long as he knew the stock was not legally issued stock, underthe laws of the state where he had practiced his profession so manyyears?' ppon a careful consideration of the evidence, I am unable tofind anything in the conduct of Jackson to subject him to criticism.He had consent of the two Barneses to sell the stock. Indeed,the negotiations for sale and the sale were conducted by Charles J.Barnes, the 'nephew of his uncle, in New York, who had been noti-fied, and who telegraphed C. J. Barnes to look out for his interests.1.'hat Jackson and Barnes owned this stock, and had the right tosell it; 'that they were lawfully in possession of it, and had beenguiltvof no wrong in obtaining that possession; and that Porter andCable had the right to purchase from them,-seems to me very clear,from the evidence.It is claimed that it was the sale of this stof;k that wrecked the

Portage Company. 'T'his is not shown to be true, but we will supposethat it is. If it was the only validly issued stock, and Barnes and.Tackson had the right to sell it to protect their own interests, andthe representatives of the Omaha Company had the right to purchaseit, how could the Omaha Company be made responsible for the con-sequences of the transfer? But, in my judgment of the evidence,the sale of the Jackson stock is not what wrecked the corporation.It was mel'ely a coincident circumstance in the final drama, and wasnot the cause. The cause was the weak and vicious management ofthe company, and its utter want of capital and financial standing andability. Suppose the $50,000 which Hickson brought to Chicago topay over to the company if he, found everything all right had beenpaid. Sloan testified it would have been but a mere drop in theblleket, whieh is, no doubt, true. 'If the company had not applied itto pay for labor and services already performed, it may have sufficedto eontinue the work for a few days,. perhaps ,two or three weeks,as the evidence shows that the work was costing some $3,000 a day.

220 95 FEDERAL REPORTER.

vVhat good ground of hope was there that with bills in the legislatureto forfeit theg-rant, with the. company owing ,$140,000, and not a mileof road completed after ofthe grant for eight years,more money could have been raised to complete the road? Gaylordand Schofield had entire control of the affairs of· the corporation.They had no money and.no credit, andn'o sufficient ability to financesuch an enterprise. The wonder is that the grant had not been takenaway long before. But tbe state of Wisconsin was very indulgent,as it always had been to railroad corporations to wbom it had madeits grants of land to aid in the construction of these great internalimprovements. This grant was.conferred upon the company in March,1874. In the act the Jands was this condition:"That said company shall construct, complete and put in operation that part of

its said railway above mentioned as soon as a railway shall be constructed andput in operation from the said city of Hudson to said point of intersection[Superior Jnnction] and witMn five years from its acceptance of said landsas herein provided, and shall also construct and pnt in operation the railwayOf said company from Genoa northerly at the rate of twenty miles per year."Laws 1874, p. 188,§ 8.

In March, 1878, the state further extended the time three years.The company was given abundant time in which to complete the build-ing of the road. It is true that some of these years covered veryhard times, but other roads, including the Omaha Company, defend-ant, pusbed its railroad enterprises in spite of the hard times. Thereis not much need to look about for conspiracy or fr::tud as a motiveforce in iDducing the legislature to take the grant away from thePortage Company and confer it upon the defendant. The financingof the enterprise under the lead of Barnes, Gaylord, and Schofield hadproved a. dismal and chronic failure. The Omaha Company was wellknown totbe people of tbe state, and had a good standing and reputa-tion for able and efficient management. The same act whichthelands sought to be reached in this case to the Chicago & NorthernPacific Air Line Company, which company was afterwards changedto the Portage & Superior Company, also granted to the North Wis-consin Railway Company, afterwards succeeded and represented bIthe Omaha Company, that part of the congressional grant applicableto the land from Hudson, on the St. Croix river, to Bayfield,--a dis·tance of about 170 miles. This line was completed by the defend·ant company in 1881. The defendant also completed its line fromHudson'to and beyond SuperioI" Junction in 1880, and in 1880 and1881 had commenced the construction of a road between a point onits Bayfield line, near Superior Junction, and Superior City. Fromthe experience the state had had with the defendant company, therecould be no cause for wonder that the legislature should entertain.some in its ability to build the road and earn the grant,which was what the state, as well as the general government, in con-ferring the grant, most wanted. The state, as well as the general

wanted the added industries and commercial facilitieswhich 'the building of the road would give. The only fulfillment ofthe original purpose of the grant was to be found in the completionof the line of road for the building of which the grant was made.

ANGLE V. CHICAGO, P. & S. RY. CO. 221

The Omaha Company, upon the passage of the act of February 16,1882, proceeded to justify the confidence which had been placed in itby the legislature, by building the line of road the same season, andwithout any delay; and the state, by its governor, conveyed to it thelands, and the legislature, by act of March 7, 1883, confirmed theprevious grant. See chapter 29, Laws 1883. The time for finishingthe 65 miles from Superior Junction to Superior City under the exten-sion granted in 1878 expired on May 5, 1882, while the act takingaway the grant was passed on February 16th, previous. It is con·tended by plaintiff that the conditions of the grant as to the worknorth from Genoa-the company never having completed any partof that line as required by the act of 1874, which required 20 milesto be completed each year-did not apply to the portion of the grantfrom Superior Junction to Superior City. And on this ground Mr.Sloan, one of the attorneys for the company, at the meeting of allthe parties in January, 1882, advised the company, when a bill toforfeit the grant was about to be introduced, that, if the bill passed,he thought the Portage Company, by going on and completing the lineby May 5th, could successfully resist the taking away of the land grantin the courts, on the same ground, I suppose, as is claimed by theplaintiff,-that the forfeiture impaired the obligation of the contractwhich the Portage Company had with the state, and was thereforeunconstitutional and void. But it is quite unnecessary to decide thiscontention, as the vital condition of Mr. Sloan's advice (that of goingon and completing the line by May 5, 1882) was not kept,-no sin-gle mile of the line was ever completed; and, as pointed out by Mr.Justice Harlan in his opinion, if the act of February 16, 1882, wasunconstitutional and void, its passage did not, in a legal sense, de-prive the Portage Company of the right to proceed with the work,and to complete the construction by the time required by the actof 1878 extending the time; and, this not having been done, it wasquite competent for the legislature, by the act of March 5, 1883, torevoke the grant, and to confer it upon the Omaha Company, whichit did,-assuming that this purpose was not accomplished by theprevious act of 1882.Since the decision of the supreme court on demurrer in this case,

the issues are mainly of fact. That is the way the case presentsitself on this hearing. The important question is whether there isany sufficient evidence to support the allegations of conspiracy andfraud contained in the bill. And it seems just as true in thisas it was in the Bond Case that the allegations of the bill are notsupported by the evidence. It is as true in this case as it was inthe Bond Case, with reference to the charge that the Omaha Com-pany wrongfully and fraudulently secured, through the action of thelegislature, a transfer of the land grant to itself, that it is sufficientto say there is absolutely no foundation for it in the testimony. Itdoes not appear that there was any corruption or attempted corrup-tion by the Omaha Company, or any of the members of the legislature,or other officials. Everything it did was open and aboveboard. :N0

of the Portage Company had any legal or equitable right toany portion of those lands, and if the legislature had simply revoked

, 95 REI':ORTljlR." .',. •• ;.- !,) ... !. - •

tbe wouldbe .such subject the:'laHdsl 'or any mterest therem, to. the satlsfaetwn of hIS debt. No

,re:sl}medbY' state,' aQdby thesame upon another It is Nst as true in thiscase ari 'ffWas iii the ,Borid Case ,(fdr the issues and, the evidence uponall are' l;l,ubstantiaJly tlle same)' that, "putting the mostunfavorable ,construction upon t4e'testimony, it l;1(jles not seem thateHller Jllclrsoh..or Barnes can b('!: for ,any breach of trustor other: t()the (Jpmllany, whep",1J,avirig offeredthe stock to"tfie Grand ,llt the' price afterwards paidby Cable, and SUch: offer having b('!en. declined, theY sold it to theOmahaCompany." 4s was said "by the supreme court, "it may bethat Schofield and Gaylord deprived of profi,tswhich they ex-pected secure bysuccessfuny carrying through the negotiationswith 'th.eGrand TrunkOompany, butwe do not understand that onestockholder is, by virtJie'of his owue,rsbip of stock,Dound to continuein the holding of it,fll order to 'apow another stockholder to makea profit out of negotiations pending." ¥y own vjew, as has beenshown, js that they were, Ilot so d,eprived'?f profits)y tbe o!Jackson and Barnes, a,nd that they ¢a:n hardly be sald to be deprlVec.of profits which they never earn,el;1 or merited. It is as ,true in tbi13case in the Bond Ci;lse thatl'lO.1ackson was guilty of no breach oft,rust in" S,e1ling the k,; that Jt be, both l.egallY,' a,nd eq, uita.bly,to J. C. and hImself; that they pad a full legalalld moral rIghttosell it to anyone,who would pay their price; and):t equally fol-lows the Company avdCa,ble, in making the purchase,were them\,elves guilty of no '" " "This covers all the vital issues in' the ,case. I bllvenot, in this

very opinioIl,n,'ot,ieed all. the contention!!mad¢. by the plain-tiffs' wasllOt my pUrpOl;le to do sq. , Tpe al,'guments of

for plaintiff are very able, andwoul!l, ,be quite un-if ,the proof wei'e asful1, and competenta.'s, the briefs of

counsel. Ihaveearefully eonslderep ,all the points made, and amfuHysatistiedto decide the case upon the stated,-of a lackof proof, ,No doubt,some allowal1ce should be made ,'on account ofthe fact that the, plaintiff has been obliged to rely largely upon testi-monY.draw:n from either in, the interest of an adverse party,or from those against, ,whom c1;l1lrges of fraud and conspiracy aremade intIiehilf. ,'But, all lHlowan<;esbeing made that would be proper,it is evident that, from whatever source the evidence comes, it shouldbe suffidentto sustain a cause Maction in equitY.'l.'he bilI <;If com-plairitwiIl be ,dismissed for want of equity, with costs.

BAILEY V. MOSHER. 223

BAILEY v. MOSHER et aL(Circuit Court, D. Nebraska. June 13, 1899.)

RIllMOVAL OF CAUSES-AMENDMENT BY PLAIN'fUI'II' AFTER REMAND-RIGHT TORENEW ApPLIQATION. .In llDaction In a state court agaInst officers or a national bank, the par-

ties beIng citizens or the same· state, defendants filed a. petition and· bondror removal, on the ground that the action was based on the laws or theUnited States. The application was denied, llDd, on the filing or rec-6rd In the federal court, that court sustained a motion to remand, on theground that plaintiff's petition did not count upon the statute, but upon thecommon law. SUbsequently plaintiff amended his pleading by addingallegations showing that he In fact relied on a violation by derendants oftheir duty as officers of the bank. Defendants answered, challenging thejurisdiction of the state court on the ground that the .cause had been re-moved. On the making of a second amendment by pll\.intiff, and withinthe tIme allowed rorpleading thereto, defendants filed a second petItionfor removal., Held, that the right of removal was not lost by the lapse oftime since the first application, nor was It waived by falling to file a re-newed application on the making of the first amendment, since the firstpetltlonwhich remained on file in the case became efl'ective as soon as 1iappeared of record that the cause was removable. '

On Motion to Remand.Biggs &; Thomas and L. C. Burr, for plaintiff.J.W. Deweese and Charles O. Whedon, for defendants.

SHlRAS, District Judge. This action was originally brought inthe district court of Seward county, Neb., and on the 29th of Ma:rch,1895, the defendants'filed a petition for a removal of the cilse into thiscourt 011 the ground that the cause of action was based upon or grewout of the laws of the United States, in that the defendants were pro-ceededagllinst as officers and directors of the Capital NationalBank for derelictions in. their duty in that capacity. 'The state courtrefused tqgrant an order of removal, and thereupon the defendantsprocured a transcript of the case, and filed the same in this court,wherein a motion to remand was made by plaintiff, and, upon con-sideration, was by this court sustained. Bailey v. Mosher, 74 Fed. 15.The principal· ground for this ruling was that the plaintiff's petition

counted on the common-law liability of the defendants, and not upona violation of any duty imposed by the national banking act. On May3, 1897, the plaintiff filed an amended petition in the state court, in,which itisset forth that the defendants were the officers and directorsof 'the Capital National Bank; that, as such directors and officers ofsaid bank, it became and was the duty of the defendants, and eachof them, under ,the law as well as the by-laws of the bank, to activelyand actually manage and superintend the business thereof; and thepetition then sets forth the particulars in which it is claimed that thedefendants violated their duty, and thereby caused injury to theplaintiff. To this amended petition the defendants filed answera,wherein, among other matters, they averred that the state court wa.without jurisdiction, in that the case had. been removed into the feder-al court. On the 6th day of March, 1899, the plaintiff obtained leaveto amend the amended petition by interlineation thereon, the defend-